Stuart Taylor: On a range of huge issues, Justice Anthony Kennedy is the emperor of America

Writing for the Daily Beast, long-time Supreme Court-watcher Stuart Taylor makes the case that on a wide range of huge and extremely controversial issues, Justice Anthony Kennedy is the law of the land.

There’s not really anything new here. The Supreme Court of recent decades has chosen to decide a lot of issues that it used to leave for the elected branches to hash out. The court has four pretty solid liberals and four pretty solid conservatives and Kennedy, who can swing the majority either way on a variety of issues. Writes Taylor:

“It’s no secret that Kennedy’s uniquely eclectic mix of views enables him to tip the balance to the left in 5-4 decisions on politically drenched issues including gay rights, abortion, and the death penalty, and to the right on issues including states’ rights, campaign spending, and guns.”

Kennedy will soon cast the decisive vote on the question of whether all states must endorse gay marriage, Taylor predicts. Taylor seems sympathetic to the cause, but troubled by the idea that Kennedy, “a 77-year-old man whose name is recognized by only 41 percent of the public—fewer than all but one of his eight colleagues—has more power by far than any president (or justice) in history to decree the law of the land on all of the issues mentioned above plus other issues, including racial affirmative-action preferences, free speech, school discipline, school integration, school prayer, the death penalty, and much more.”

Kennedy, Taylor notes, has never been elected to anything. And he adds that ” the Constitution’s text is so ambiguous when refracted through 225 years of history that respectable legal arguments can be made for almost any policy outcome that a justice might favor.”

Comments (8)

  1. Submitted by richard bonde on 02/24/2014 - 01:05 pm.

    supremes

    Why don’t the liberal justices resign while there is a Democrat in the White House?(at least the most decrepit of them).

    Wouldn’t it be nice if the justices had to retire on the their 75th birthday?

  2. Submitted by Paul Brandon on 02/24/2014 - 01:41 pm.

    Because

    some of the most physically decrepit are the most intellectually crepit (?). You’d rather a batch of healthy fools like Clarence Thomas? Fortunately, modern medicine can keep people like Ginsburg going for a long time yet.

  3. Submitted by Ray Schoch on 02/24/2014 - 02:10 pm.

    Unsettling

    Yes, it *is* a little disturbing to have all that much power in the hands of an unelected (and in this case, never elected) official.

    On the other hand – perhaps more in keeping with the ‘original intent’ that some like to interpret to fit their own views nowadays – there’s nothing about “judicial review” in the Constitution. What we think of as normal procedure for the SCOTUS is a product of John Marshall and Marbury v. Madison in 1803. As Eric suggests, even a century ago, with Marbury firmly intrenched in precedent, the Court was much more inclined to let states hash things out for themselves.

    Frankly, a mandatory retirement age for justices of the Supreme Court gets a thumbs-up in my household. Granted that there are, and have been, justices whose minds were just as sharp, and perhaps more shartp, at age 87 as they had been at age 57, my bias is that they represent the exception rather than the rule. No need to push them off the legal stage prematurely at, say, minimum Social Security age of 62, but 75 strikes me as a reasonable, if arbitrary, age limit.

    The trick, of course, would be getting confirmation of new justices, given the partisan and often racist ideological gridlock currently on display in Washington. At the current rate of confirmation, many Obama appointees may never be confirmed, and thus never take office, not because they’re not qualified, but because they’re Obama appointees. This seems especially likely if the mid-term elections go as Republicans hope they will.

    What goes around comes around, and eventually those who like to call themselves “conservative” may well pay a steep price for their shortsightedness, but in the interim, it’s a gross understatement to suggest that they’re not serving the public interest, which is, after all, their constitutional duty.

    And should Justice Kennedy retire of his own accord, or die, it’s not difficult to imagine either an ideological battle royal over his replacement, or else a complete capitulation of the White House to extremist demands from the right. Sigh.

    • Submitted by RB Holbrook on 02/24/2014 - 04:06 pm.

      Marbury

      Judicial review was not a product of John Marshall and Marbury v. Madison. Judicial review was well accepted before that case was decided, albeit not at the federal level. There is a difference of opinion on how often the judicial power was used to strike down laws as unconstitutional, but the theory behind judicial review was nothing new at the time of Marbury.

      Why is an automatic retirement age a good thing? I certainly don’t like the idea of certain current members of the Court staying on the bench (and only one of them is named “Scalia”), but it doesn’t follow that a guaranteed turn-over is a good thing. In fact, I can’t help but think it would take away some of the legitimacy of the Court. If a decision is unpopular, just wait a few years until the right number of justices dies. We can fix it then!

      • Submitted by Peder DeFor on 02/24/2014 - 04:35 pm.

        Wait em out

        RB, I’d never thought about the wait em out approach. You’re exactly right though. Lawsuits would become more strategic and the legitimacy of the court would suffer.

      • Submitted by Paul Brandon on 02/24/2014 - 05:26 pm.

        We don’t have to wait

        The Court does not make laws; just rules on their constitutionality.
        Congress can always enact new laws that clearly contradict the Court’s interpretation of current laws. This has limits — for instance, the Court would undoubtedly rule any law that limited suffrage based on race or gender unconstitutional, but that’s the give and take of the division of powers.
        The point is that the Court’s powers have limits set by the other branches of government.

  4. Submitted by Ilya Gutman on 02/24/2014 - 07:25 pm.

    Just a suggestion

    All decisions made 5 to 4 have nothing to do with the Constitution and everything to do with the ideology. Therefore, they should not be valid – a 3 point margin should be necessary. Cases resulting in 5 to 4 split should go back to the Congress to be decided by the people’s representatives.

  5. Submitted by Paul Landskroener on 02/25/2014 - 04:19 pm.

    Why life tems?

    Rather than setting an arbitrary retirement age (which would require a constitutional amendment), amend the constitution to provide for long — but not lifetime — appointments. One plan I’ve read is to appoint justices for 20 year terms, and to implement it so that two terms expire during each presidential term. (This rule could apply to district and circuit court judges, too.) This would provide for continuity but also for change; would continue to insulate justices from the political pressures faced by elected judges or judges who can be removed by the executive who appoints them; and would free presidents from thinking they should appoint younger (and less seasoned) judges so that they get the longest possible service from them.

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